September 28, 2009

Nasser Hussain

A conference being organized by two Amherst College professors this week, titled “Prosecuting Bush, Cheney and Rumsfeld: What Does the Rule of Law Require?,” will yield a book that may guide Obama administration officials and members of Congress who may be contemplating doing just that, says conference co-organizer Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science and Five College 40th Anniversary Professor.

“There will be a book coming out of this conference that will be published by New York University press, and we hope to get it out reasonably quickly,” said Sarat, who will co-edit the book along with Nasser Hussain, associate professor of Law, Jurisprudence and Social Thought. “Our hope,” Sarat said, “is that people making decisions about these things will reflect on what this book will say, and just as importantly, we hope to contribute to the ongoing American conversation about what the ‘rule of law’ demands and requires.”

The conference, which is free and open to the public and made possible with support from the Lamont Lecture Fund., will commence with opening remarks at 1:45 p.m. on Friday at the Alumni House and will feature three afternoon sessions: “Free-Riding on Human Rights” from 2 p.m. to 3 p.m., with Claire Finkelstein of the University of Pennsylvania and Paul Horwitz of the University of Alabama acting as lead commentator; “The ‛Rule of Law’ and the Costs of Settlement” from 3 to 4 p.m., with Horwitz and Finkelstein as lead commentator; and “Universal Jurisdiction as Praxis: Can Superpower Torturers Be Held Accountable?” from 4:30 to 5:30 p.m. with Lisa Hajjar of the University of California, Santa Barbara, and Stephen I. Vladeck of American University as lead commentator.

Austin Sarat

On Saturday morning, the sessions are as follows: “The Politics and Psychology of Selective War-Crimes Prosecutions” from 9 to 10 a.m., with Stephen Holmes of New York University and Hajjar as lead commentator; “Justice Jackson, Internment and the Politics of Memory: On the Rule of Law After the Bush Administration” from 10 to 11 a.m., with Vladeck and Holmes as lead commentator; and a wrap-up and next-steps session taking place at 11:30 a.m.

Rather than spend much time debating whether or not top Bush administration officials are guilty of actions such as authorizing the torture of prisoners held at Guantánamo Bay, Sarat said, conference participants have been asked to consider the question, “If these officials are guilty, what is the proper way for Congress and the Obama Administration to respond?”

“We’ll also be thinking about what rule of law requires in the face of government lawlessness,” Sarat added. “That’s an enduring topic that will be with us long after any decision will be made about how to respond to the Bush Administration’s alleged crimes.”

Sarat stressed that not all conference participants agree that any sort of prosecution should take place. “Some are in favor of prosecution, some are not,” he said. “Some think that if there is to be a prosecution, it should be done outside of the United States, while others think it should be done using traditional mechanisms available in the United States.”

Though he expects each session to be interesting, Sarat said he thought the Friday session being led by Professor Vladeck promised to be especially provocative. “His argument has to do with the notion that it is history that ultimately holds wrongdoers accountable, whether or not they are prosecuted,” Sarat says. “He draws parallels to what happened to the people who authorized internment of Japanese-Americans at the end of World War II. No one was prosecuted, no charges were brought, but the action now is universally condemned. He says perhaps there is no need for prosecution, because perhaps history will be a harsh judge in this instance as well.”

Looking forward, Sarat said he does not sense much appetite among Obama administration officials and Congress to prosecute top Bush Administration officials for war crimes. Still, he said, the issues to be examined in the conference and subsequent book will prove useful and relevant down the road.  “If the Obama Justice Department or the Senate Judiciary Committee were to initiate some official inquiry into the alleged crimes of the Bush Administration,” he said, “then this conference and its results might explain why or why not doing so is the right thing to do.”